NSA, DHS Sued For Threatening People Who Created Parody Merchandise

from the parody-is-protected-free-speech dept

You may recall the story from a few months back about the NSA supposedly issuing a takedown over some parody NSA merchandise. The NSA later claimed that it had no problem with the parody T-shirt that was specified, but did admit that a few years ago, it had sent a cease-and-desist letter to Zazzle, the platform that many people use to make such branded content, telling them they couldn't sell any merchandise with the NSA seal, since it would be a violation of 50 USC 3613, which says it's against the law to "misuse" the NSA's logo. It turns out that the Department of Homeland Security, DHS, had sent a similar letter, focusing on 18 USC 506, saying it's a crime to "mutilate or alter the seal of any department or agency of the United States." DHS even warned Zazzle that it could be punished with fines or jail time, and gave Zazzle a link to a general search on the Zazzle site of all items labeled "DHS."

Either way, Dan McCall, who created the NSA T-shirt design which was taken down in August, using the motto "peeping while you're sleeping" has decided to sue for declaratory relief, represented by Paul Levy of Public Citizen (disclaimer: Paul has represented us in various matters over the years).

The lawsuit argues that the two cease-and-desist letters sent to Zazzle have violated McCall's First Amendment rights, which include protecting parody speech, and that the two laws cited should not be construed to forbid parodies because, well, because that's ridiculous. Furthermore, the lawsuit argues that 18 USC 506 is unconstitutional, in that the claim against altering and mutilating seals is way too broad and can, as in this case, lead to protected speech being stifled.

Defendants violated the First Amendment to the United States Constitution by
threatening to enforce 50 U.S.C. § 3613 and 18 U.S.C. §§ 506, 701, and 1017 to forbid McCall from
displaying his NSA Listens Parody, his NSA Spying Parody, and his DHS Stupidity Parody, from
placing the Parodies on products to identify the targets of his criticism, or from selling mugs, T-shirts
or other items bearing those designs to customers who want to display the items to express their own
criticisms of NSA and DHS.

In his blog post about the case, Levy also explains how Zazzle, though not a party in the suit, is really complicit in all of this, for using those single threatening cease-and-desist letters to take down future products and for not pushing back against such overly broad claims from the government. While he notes that when the government comes calling, lots of companies bend over to avoid any legal consequences, he still notes that this is the kind of situation where a competent lawyer at Zazzle should have pushed back on the government and pointed out that these letters were ridiculous (even more bizarre: Zazzle refused to share the letters with Levy, saying they would only read them aloud to him over the phone).

...it is inconceivable that the First Amendment might not protect these uses of the agencies’ shields, and the NSA’s trademark-like statute applies, by its terms, only when the challenged use “convey[s] the impression that such use is approved, endorsed, or authorized by the National Security Agency.” Although the NSA’s cease-and-desist letter specifically identified McCall's “Spying Since 1952" design as violating this statute, we should be able to expect a substantial commercial operation to push back against the implicit suggestion that somebody looking at that mug could have believed that NSA endorses it. Even though the cease-and-desist letter warned Zazzle against “any” future use of its name, initials or seal, it is even more farfetched to think that NSA would have endorsed a version of its seal that says, “Peeping While You’re Sleeping.” Consumers have a right to expect companies like Zazzle to have a thicker skin when faced with preposterous demands, and to wait for specific trademark challenges, rather than policing its service for other uses of the letters NSA, and proactively removing this sort of design in response to a cease-and-desist letter received two years before.

Happily, Zazzle faces commercial competition from others that do get tough on frivolous threats. After Zazzle removed McCall’s designs in response to threats of litigation, McCall posted them to a virtual storefront at CafePress.com. We don’t know whether CafePress has received similar threats from NSA or DHS, but based on previous experiences dealing with CafePress on trademark issues, I would expect CafePress to be more resistant to cease and desist letters.

Still, until Zazzle shows itself to be more energetic in responding to threats against political humor, parodists speaking about controversial subjects should consider voting with their feet by using other vendors.

Indeed. If you actually want a company that will stand up for your basic rights, it seems like Zazzle might not be the best option.

So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

This is the most diverting / distracting piece yet from your NSA series. You just fade out NSA / DHS and focus on Zazzle.

I don't see any good purpose that this serves. You are beating up on the original victim. If they're craven, try to brace them, but the slant you give this is just plain wrong.All Techdirt logo T-shirts are hand-made. ... By laborers, a class of people whom Mike never even mentions, let alone favorably.

Re: Re: So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

If you try to ignore your bias again him, he sort of has a point.

The real enemies - the true causes of the problem - are the NSA and DHS. Taking swipes at Zazzle for not "standing up for your rights" distracts us from the main point: the NSA and DHS are doing evil things.

It is not Zazzle's job to combat injustice: its job is to make money. If this makes you unhappy, then I suggest that you work toward creating incentives (or punishments) to force companies to play nice.

Re: Re: So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

WOW! Been a fond ZAZZLE customer over the years so is it pretty safe to assume that ZAZZLE might have shared info on customers who bought these parody products to be "red-flagged" by these gov. agencies? Man, I hate to be on the "no-fly list" because ZAZZLE ratted me out to the DHS and maybe subjected to some tickly cavity search by the TSA.

Re: So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

Now the corporation siding with the government and immediately caving to their demands without pushing back is the victim? But you've been telling us for weeks that when other companies (Googe et al) do that they're part of the government apparatus? Which is it? Whichever you feel is most different from the article you're responding to apparently.

Mike Godwin curb stomped the FBI a couple years back when they demanded Wikipedia stop using their seal. In that particular instance all he had to do was shine a light on their blatantly dishonest misreading of the law.

Obviously that wouldn't work here. The NSA's complete lack of give a shit about what the public thinks is the foundation of the market in this case.

Re: Re: Re: So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

It's got nothing to do with bias against blue and everything to do with the fact that if it were Google instead of Zazzle blue would be arguing Google et al was more responsible for the activity than even the requesting agencies which blue has done many many times. It's completely hypocritical and it's completely obvious that blue just want to disagree with everything said on techdirt even if the lines of reasoning used to do so contradict the lines of reasoning blue uses in other threads.

Motherfucking Eagle!!!

As a proud owner of the Techdirt "This Shirt has been Seized" t-shirt, I hope that the alteration of those seals aren't in violation of federal law (might be a little more worrisome when I wear that shirt to the airport.) Now, I just get harassed by the Department of Homeland Stupidity/Transportation inSecurity Agency...

Re: Re: Re: So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

Taking swipes at Zazzle for not "standing up for your rights" distracts us from the main point: the NSA and DHS are doing evil things.

I disagree. It just points out another thread in the tapestry, it's not distracting it's enhancing. Also, it's entirely possible to pay attention to more than one thing at a time. It's not even that hard.

It is not Zazzle's job to combat injustice: its job is to make money.

That's right. So the way to make corporations behave better is to punish them by by withholding your business when they don't behave like good citizens. To do that, we have to be aware of when they aren't acting the way we like.

"...it's not distracting it's enhancing..."

Indeed.

You can't demand that I defend you from thugs on the street, but, as a responsible member of society, I will. I don't demand that Zazzle, at their own expense real or imagined, protect the rights of others; however, once I find they don't, I recognize that it is not in my best interests or the wider interests of my society to promote Zazzle's success with my custom.

Re: Re: Re: Re: So... NSA and DHS are in the wrong, and that's reason to attack Zazzle?

Any chance this could go class action?

Dan McCall isn't alone. I just had one of my products taken down and the reasoning is even more absurd. Mine is the "Newt Salamander Association" and has a salamander in a suit wearing an NSA hat surround by a circle and the words Newt Salamander Association. I've had no issues with the older designs that I created before Snowden, but I just made a new one and it almost immediately was pulled. The only difference between this product and the others was that I tagged it NSA. You can still see products with this design right on the home page for my store (awphul_poetic_design*). I wonder how long before I get "infringement" notices on those designs. Even though I'm ticked off with Zazzle I'm not planning on closing my store (yet), but I am working on creating a store at Cafepress.

Re: Re: Any chance this could go class action?

He is suing the NSA and not Zazzle. As frustrating as it is I still have a Zazzle store. The problem is that the DMCA has the "safe harbor" provision that protects Zazzle. It also contains 17 USC 512(f) which states that an entity making a false claim of ownership can be held financially accountable. This was intended to discourage people from trying to claim ownership of designs already in the public domain. Technically, if you challenge Zazzle they are supposed to inform the party making the claim and if they don't respond within 10 days the items are supposed to be relisted. I'm not sure how the old letter from the NSA would be interpreted. Zazzle may be taking the stance that a letter from the NSA is the same as an injunction issued by the court. I'm not happy with Zazzle but I'm not closing my account. No shame in selling products on more than one platform. Setting up a shop is free so I can't complain too much. I think McCall is taking the right approach by suing the NSA because they are the ones making the false claims.